The updates to iTunes issued on 22 June 2010 came with some updated terms,,,

Take a good look… 101 pages! And then you say you’ve read and agree to them! Weasel words would say that you have the chance to read them – even email them to yourself – but that really is rubbish. This is almost(?) a systematic abuse of Apple’s customers by doing nothing to attempt to help them to enter into any kind of meeting of minds or mutual understanding of the relationship. Rubbish.

22 June 2010

According to the Sydney Morning Herald on 22 June 2010 the Australia Privacy Commission, Karen Curtis, is not nearly as worried as Senator Stephen Conroy would like to believe.

Curtis rejected Senator Conroy's claims that banking transactions were captured, while also noting that Google did not collect personal information transmitted over encrypted Wi-Fi networks.

“Australian banks use secure internet connections and my Office is not aware of any instances where banking information has been collected,” she said.

This is unsurprising, given the nature of SSL/TSL connections that banks and many other organisations use. In addition, the SMH reported that the data was collected in "0.2 second snatches", so I think it's a reasonable bet that often no data at all was collected other than "internet background noise" in many many cases.

So, once again the facts prove Stephen Conroy wrong. It will be good when he loses his ministry portfolio.

17 June 2010

Asher Moses reported in the Sydney Morning Herald on 17 June 2010 that:

The federal government is hiding controversial plans to force ISPs to store internet activity of all Australian internet users - regardless of whether they have been suspected of wrongdoing - for law-enforcement agencies to access.

Yesterday, a spokesman for Attorney-General Robert McClelland denied web browsing histories would be stored, saying the government was only seeking to identify "parties to a communication", such as senders and receivers of emails and VoIP calls.

The most laughable part about the Australian Labor Government's approach to this is this statement on behalf of the Attorny-General, Robert McClelland. He hasn't been noted for the same amount of stupidity leaving his mouth as his colleague, Communications Minister Stephen Conroy. However, this is what was reported:

McClelland's spokesman defended the lack of transparency, saying the government had consulted broadly with industry about the plan but "it would not be appropriate to disclose policy discussions which are the subject of consultations with the industry".

What kind of clownish statement is this? I think you should be having policy discussions with the people of Australia (whom you allegedly represent), rather than hiding behind this statement, which is both meaningless and lacking in substance.

15 June 2010

Cyberspace July 2010

Content delivery

Google recently announced "Google TV" (http://www.google.com/tv/), which promises to deliver internet video content to your TV. I'm a bit sceptical about it at present since recent travels to France and Hong Kong have opened my eyes to what we're missing out on today.

Everything over the internet

In Paris we had a Freebox (http://free.fr) connected to the TV instead of an aerial. It plugged into the powerpoint just like any other set-top box. Elsewhere in the apartment was a typical modem, and the TV box wirelessly received signal from it. It also provided a telephone service and a wi-fi network for the apartment. Calls to most countries were free, so you get internet, tv and telephone for €30 per month. The TV has 168 channels in the basic package, with up to 396, and Free is presently laying 100 MB fibre in Paris to further improve services.

Hong Kong has something similar, provided by PCCW (http://pccw.com) since 2003. As a subscriber, you get home internet access, 7,000 wi-fi hotspots around Hong Kong, 3G mobile data, and up to 170 channels of TV (which can be chosen singly). Because the TV is delivered over the network you can also shop, order take-away food and a number of other services optimised for delivery to the TV screen (not all web pages play nicely when rendered on a TV). You can even subscribe using an existing Sony PlayStation 3, rather than rent another box, and some video is on demand, rather than being scheduled.

Both of these services are easily "consumer accessible", but in Australia we have a mish-mash of product without simple delivery. Some ISPs provide unmetered bandwidth for certain activities; iiNet has its Freezone, BigPond doesn't charge to download from movies.bigpond.com, and Internode has several offerings including the ABC's iView, and internet radio. Optus "Zoo" tries, but doesn't satisfy. In fact, very few people would be satisfied if this these were their only "TV" connection. However, other things are on the horizon.

In May 2010 Foxtel lodged an exclusive dealing notification with the ACCC. Foxtel will supply video and associated services to iQ set top boxes via the internet, but only over Telstra's BigPond system. The data will be unmetered or very cheaply supplied, but if you don't use BigPond then you won't received the service. Users will be able to "download a wide variety of content such as movies and television programs... [and] watch the content on demand", purchasing content "on a per programme basis or on a bundled basis."

Putting aside the third line forcing issue, this is really only a very small step compared to the Freebox product. Products such as an unhacked Apple TV, TiVo or Windows Media Centre have virtually no commercial content in Australia. We also can't listen to Pandora internet radio, watch BBC iView, nor find anything watchable on Hulu or Boxee. There are many fragmented steps toward a simple IPTV delivery system (including the proposed Google TV, Telstra T-Box (http://www.telstra.com.au/latest_offers/tbox/) and iiNet's resale of FetchTV), but until content providers in Australia rethink their delivery channels we won't see anything like free.fr.

Even if there was a Freebox in Australia, could our infrastructure support it? Probably only for a few, since only ADSL2, cable, Ethernet or fibre could support this sort of content delivery. Legislation to require fibre to be laid in greenfield residential developments has been delayed again (although I think the government should prescribe performance requirements, rather than a particular type of technology). The NBN (http://nbnco.com.au) is focussed on regional areas at present, relies on local ISPs being interested in that area, and may use wireless and satellite, which often provides a poor internet experience due to latency.

08 June 2010

Stephen Conroy is wrong. Completely wrong. One of reasons for the existence of SSL (aka TLS or https)is that it encrypts the connection between the user's browser and the service provider (in this case, a bank).

Even if Google captured packets while people were doing banking, those packets were encrypted by at least 128 bit encryption.

He then, hilariously, goes on to say that the Federal Government should have access to the information. Actually, Stephen, it's mostly governments and government departments that lose confidential information.

07 June 2010

Public predecisional/deliberative draft

April 2010

Here's my very preliminary thoughts on the first half of the current draft of ACTA found at http://www.dfat.gov.au/trade/acta/index.html. There's been a lot of concern in many countries about this agreement, and some secrecy continues.

I remain a bit concerned about some parts.

Participants in the negotiating process are not identified, although their comments are included. Gutless.

ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS21. Members shall give effect to the provisions of this Agreement. A Party may implement in its domestic law more extensive protection and enforcement of intellectual property rights than is required by this Agreement,

We must enact laws in accordance with this agreement.

ARTICLE 2.X: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT1. Procedures adopted, maintained, or applied to implement this Chapter shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

The matters referred to in the last sentence are all in favour of the rights holders.

[3. Those measures, procedures and remedies shall also be [effective, proportionate][ fair and equitable] and [deterrent]]6]

Note "deterrent". The philosophy behind deterrence is very different to "proportionate".

[2. At least with respect to works, phonograms, and performances protected by copyright or related rights, and in [cases of trademark counterfeiting], in civil judicial proceedings, [As an alternative to paragraph 1,] each Party [shall][may] establish or maintain a system that provides:(a) pre-established damages;(b) presumptions for determining the amount of damages11 sufficient to compensate the right holder for the harm caused by the infringement.12 [; or(c) additional damages]]

This is "liquidated damages." This means the rights holder does not need to prove the amount of damage - it can rely on a statutory formula. This leads to absurd results such as in the Jammie Thomas case in the USA. Currently a law firm in the USA US Copyright Group is asking bittorrent downloaders to pay $2,500 for downloading the Hurt Locker. Surely the damages should be about USD$25? That might explain why this firm's website DOES A LOT OF TYPING IN ALL CAPITALS.

[3. Where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity, each Party may [lay down that] [establish] [may authorize its] the judicial authorities may [to] order the recovery of profits or the payment of damages, which may be pre-established.]

So you can be liable for damages for unitentional acts - this seems squarely aimed at the parent, whose children do the infringing.

ARTICLE 2.3: OTHER REMEDIES1. With respect to goods that have been found to be [pirated or counterfeited] [infringing an intellectual property right], each Party shall provide that in civil judicial proceedings, at the right holder’s request, its judicial authorities shall have the authority to order that such goods be [recalled, definitively removed from the channel of commerce, or] destroyed, except in exceptional circumstances, without compensation of any sort.

This seems fair enough at first blush, but will create great injustice where infringement is "unknowlingly committed" and comprises only part or a small part of the goods to be destroyed.

2. Each Party shall further provide that its judicial authorities shall have the authority to order that materials and implements the predominant use of which has been in the manufacture or creation of [infringing] [pirated or counterfeit] goods be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements.

The means of production can be destroyed - so long as the "predominant use of which has been" infringing activity. This does NOT provide for destruction of items where there has been no infringing activity. eg: personal mod chips.

ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT[Without prejudice to other statutory provisions which, in particular, govern the protection of confidentiality of information sources or the processing of personal data,]17 Each Party shall provide that in civil judicial proceedings concerning the enforcement of [intellectual property rights][copyright or related rights and trademarks], its judicial authorities shall have the authority upon a justified request of the right holder, to order the [alleged] infringer [including an alleged infringer] to provide, [for the purpose of collecting evidence] any [relevant] information [information on the origin and distribution network of the infringing goods or services][in the form as prescribed in its applicable laws and regulations] that the infringer possesses or controls, [where appropriate,] to the right holder or to the judicial authorities. Such information may include information regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of such goods or services, including the identification of third persons involved in the production and distribution of the infringing goods or services or in their channels of distribution. [For greater clarity, this provision does not apply to the extent that it would conflict with common law or statutory privileges, such as legal professional privilege.] ]

This probably doesn't change the Australian position much - it could force ISPs to provide consumer data.

ARTICLE 2.5: PROVISIONAL MEASURES[X. Each Party shall provide that its judicial authorities shall have the authority, at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right [copyright or related rights or trademark]. An interlocutory injunction may also be issued, under the same conditions, against an [infringing] intermediary whose services are being used by a third party to infringe an intellectual property right.

This allows for injunctions against ISPs if subscribers are found downloading copyright material.The next section allows ex-parte injuctions, which are not uncommon in Australia.

Physical goods

These measures seem substantially similar to the situation in Australia today.

Criminal enforcement

Includes significant infringement even without commercial gain - this catches those who do it for thrills or some misguided opinion about the validity of intellectual property rights.

Penalties can include imprisonment, which seems appropriate, given that theft is theft, regardless of the object stolen.

Protection of ISPs

ARTICLE 2.18 [ENFORCEMENT PROCEDURES IN THE DIGITAL ENVIRONMENT]45

There are alternative approaches here, which pay lip service to protection of ISPs when a user infringes.

each Party [shall][ may]:(a) provide limitations52 on the scope of civil remedies available against an online service provider for infringing activities that occur by(i) automatic technical processes, and(ii) the actions of the provider’s users that are not directed or initiated by that provider and when the provider does not select the material, and(iii) the provider referring or linking users to an online location,when, in cases of subparagraphs (ii) and (iii)53, the provider does not have actual knowledge of the infringement and is not aware of facts or circumstances from which infringing activity is apparent;

This protection goes away unless the online service providers act [takes appropriate measures] expeditiously, in accordance with applicable law [s], [such as those] to remove or disable access to infringing material or infringing activity upon obtaining actual knowledge of the infringement

So what is "actual knowledge"? Is that because a rights-holder has made an allegation, or a court has declared that infringing conduct has occurred? The latter is indisputably "knowledge" - the former is not.

Another option is that an online service provicer must adopt and reasonably implement a policy to address unauthorised storage or transmission of materials. This will be a minefield for what is reasonable. The Rapidshare case dealt with this, noting that Rapidshare could not determine the contents of encrypted files - so would a service provider have to ban encrypted files?

Another alternative is a doozy...

[ 3 ter. Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscriber.

The false positives in USA cases seem to be common - this just drags a lot of people into something where they don't belong.I've got 4 teenagers in my household - we have explicit rules and I run some protective measures, but there's no way I can control what a couple of 18 year old boys can get up to. Why should I suffer?

Getting around stupid copy protection schemes

We have returned two games this year already, where they simply would not run on all of our computers due to copy protection. The govenment must restrict:

(a) the unauthorized circumvention of an effective technological measure64 [that controls access to a protected work, performance, or phonogram]; and(b) the manufacture, importation, or circulation of a [technology], service, device, product, [component, or part thereof, that is: [marketed] or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure.]]

About Me

Well known for my column Cyberspace in the Journal of the Law Society of New South Wales, I'm in private practice in a specialist technology & commercial law firm - Pym's Technology Lawyers. I've been in-house legal counsel at major enterprises:

Ash Street Partners

Pym's Technology Lawyers

Sydney Water Corporation (Australia's largest water utility), and

Technology & Commercial law team at the Australian Broadcasting Corporation (Australia's pre-eminent media organisation),